COBALT COAL CORP. MINING, INC.

359 NLRB No. 123 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Cobalt Coal Corp. Mining, Inc. and United Mine Workers of America, AFL–CIO. Cases 09– CA–092229, 09–CA–095354, and 09–CA– 096073 May 24, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK The Acting General Counsel seeks a default judgment in this case on the ground that Cobalt Coal Corp. Mining, Inc. (the Respondent) has failed to file an answer to the order consolidating cases, consolidated complaint, com- pliance specification, and notice of hearing. Upon a charge and first and second amended charges filed by United Mine Workers of America, AFL–CIO (the Union) in Case 09–CA–092229 on October 29 and December 7, 2012, and January 29, 2013, respectively; a charge and amended charge filed in Case 09–CA–095354 on De- cember 20, 2012, and January 29, 2013, respectively; and a charge filed in Case 09–CA–096073 on January 9, 2013, the Acting General Counsel issued an order con- solidating cases, consolidated complaint, compliance specification, and notice of hearing (consolidated com- plaint and compliance specification) on February 25, 2013, against the Respondent. The Respondent failed to file an answer. On April 3, 2013, the Acting General Counsel filed a Motion for Default Judgment with the Board. Thereaf- ter, on April 4, 2013, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. Similarly, Section 102.56 of the Board’s Rules and Regulations provides that the allegations in a com- pliance specification will be taken as true if an answer is not filed within 21 days from service of the compliance specification. In addition, the consolidated complaint and compliance specification affirmatively stated that unless an answer was received by March 11, 2013, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the consolidated complaint and compliance specification are true.1 Further, the un- disputed allegations in the Acting General Counsel’s motion disclose that the Region, by letter dated March 19, 2013, notified the Respondent that unless an answer was received by March 25, 2013, a motion for default judgment would be filed. On March 26, 2013, the Re- spondent, by its owner and president, Michael Crowder, sent an email letter to the Region stating that it was in- solvent and unable to afford counsel or file an answer. By letter dated March 28, 2013, the Region informed the Respondent that legal counsel was not required to file an answer, and encouraged the Respondent to file an an- swer. The Respondent did not reply to that letter or file an answer. Although the Board has shown some leniency toward respondents who proceed without the benefit of counsel, the Board has consistently held that pro se status alone does not establish a good cause explanation for failing to file an answer. See, e.g., Patrician Assisted Living Facil- ity, 339 NLRB 1153, 1153 (2003); Sage Professional Painting Co., 338 NLRB 1068, 1068 (2003). Here, the Respondent never filed an answer and it offered no good cause explanation for its failure to do so, despite being reminded that its answer was due and told that counsel was not necessary to file an answer.2 Accordingly, in the absence of good cause being shown for the failure to file an answer, we grant the Act- ing General Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times since about March 8, 2010, at which time the Respondent commenced its operations, and continuing to date, the Respondent has been a corpo- ration with an office in Premier, West Virginia, and has been engaged in the mining of coal at its facility in Hens- ley, West Virginia. 1 Although the answer to the compliance specification was not due as of this March 11 deadline, the Region subsequently provided the Respondent with the required time to file an answer to the compliance specification, as well as a further extension. 2 The consolidated complaint and compliance specification indicates that the Respondent ceased operations on November 7, 2012. It is also well established that a respondent’s cessation of operations does not excuse it from filing an answer to a complaint or a compliance specifi- cation. See, e.g., OK Toilet & Towel Supply, Inc., 339 NLRB 1100, 1100–1101 (2003); Dong-A Daily North America, 332 NLRB 15, 15– 16 (2000); Holt Plastering, Inc., 317 NLRB 451, 451 (1995) (respond- ent was not excused from filing an answer to compliance specification, even though the respondent notified the Board it had “ceased operations and liquidated the plant facilities”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 In conducting its operations during the 12-month peri- od ending November 7, 2012, the Respondent sold and shipped from its Hensley, West Virginia facility goods valued in excess of $50,000 directly to Alpha Natural Resources, Inc., which operates a coal preparation plant located in the State of West Virginia, and is an enterprise directly engaged in interstate commerce that shipped goods valued in excess of $50,000 directly to points lo- cated outside the State of West Virginia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Daniel Smith - Superintendant JC Woolridge - Out-by Foreman Clayton Van Roberts - Mine Foreman The Respondent engaged in the following conduct: 1. About September 24, 2012, the Respondent, by JC Woolridge, at its Hensley, West Virginia facility: (a) By telling an employee that the Respondent knew what the employees were doing about the Union, created an impression among the Respondent’s employees that their union activities were under surveillance by the Re- spondent. (b) Interrogated an employee about the employee’s union activities. 2. About October 15, 2012, the Respondent, by Daniel Smith, at its Hensley, West Virginia facility: (a) By telling an employee that he knew which em- ployees were the leaders of the Union, created an impres- sion among its employees that their union activities were under surveillance by the Respondent. (b) Interrogated an employee about which employees signed union authorization cards. 3. About October 25, 2012, the Respondent, by JC Woolridge, at its Hensley, West Virginia facility, inter- rogated an employee about employees’ involvement in a petition supporting the Union. 4. About October 25, 2012, the Respondent, by Daniel Smith, at its Hensley, West Virginia facility, interrogated an employee about which employees were attempting to form a union. 5. About November 1, 2012, the Respondent, by Dan- iel Smith, at its Hensley, West Virginia facility: (a) Threatened an employee that the Respondent would shut down the mine if employees voted in the Un- ion. (b) Interrogated an employee about whether the em- ployee signed a union card. 6. About November 7, 2012, the Respondent, by Dan- iel Smith, at its Hensley, West Virginia facility: (a) Interrogated an employee about how the employee voted in the election. (b) Interrogated employees about who voted for the Union during the election. (c) By telling employees that the Respondent knew which employees did not vote for the Union, created an impression among its employees that their union activi- ties were under surveillance by the Respondent. (d) Told employees that they were being sent home prior to the completion of their work shift because the employees voted in favor of the Union. 7. About November 7, 2012, the Respondent, by Clay- ton Van Roberts, at its Hensley, West Virginia facility, interrogated an employee about how the employees vot- ed in the election. 8. Starting about October 22, 2012, the Respondent refused to recall and/or assign work to its employee Johnny Simms. 9. About November 7, 2012, the Respondent sent home the following employees prior to the completion of their work shift: Eddie Branch Bruce Blankenship William Mullins Fred Coleman Danny Smith 10. The Respondent engaged in the conduct described in paragraphs 8 and 9 because the named employees of the Respondent formed, joined, or assisted the Union and engaged in concerted activities, and to discourage em- ployees from engaging in these activities. CONCLUSIONS OF LAW 1. By the conduct described in paragraphs 1 through 7, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 2. By the conduct described in paragraphs 8 through 10, the Respondent has been discriminating in regard to the hire or tenure or terms and conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. COBALT COAL CORP. MINING, INC. 3 3. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(3) and (1) by refusing to recall and/or assign work to an em- ployee and by sending employees home prior to the completion of their work shift because the employees formed, joined or assisted the Union and engaged in con- certed activities, and to discourage employees from en- gaging in these activities, we shall order the Respondent to make whole Johnny Simms, Bruce Blankenship, Eddie Branch, Fred Coleman, William Mullins, and Danny Smith for any loss of earning and other benefits suffered as a result of its discrimination against them by paying them the amounts set forth in the compliance specifica- tion, with interest accrued to the date of payment, as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB No. 8 (2010), and minus tax withholdings required by Federal and State laws.3 Additionally, in accordance with our recent decision in Latino Express, 359 NLRB No. 44 (2012), we shall order the Respondent to compensate Simms, Blankenship, Branch, Coleman, Mullins, and Smith for the adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a report with the Social Security Ad- ministration allocating the backpay award to the appro- priate calendar quarters for these employees. The Respondent shall also be required to remove from its files any reference to the unlawful refusal to recall and/or assign work to Simms and the unlawful sending home of Blankenship, Branch, Coleman, Mullins, and Smith prior to the completion of their work shift, and to notify them in writing that this has been done and that the refusal to recall and/or assign work and sending home prior to the completion of their work shift will not be used against them in any way. 3 As to the Respondent’s claim that it is insolvent, the Respondent’s financial resources have no bearing on the question of the calculation of gross backpay due to the discriminatees. What is relevant now is the amount due, not the Respondent’s ability to pay. See Diversified En- terprises, 358 NLRB No. 48, slip op. at 2 (2012). Therefore, the Re- spondent’s financial situation is not a basis for denying the Acting General Counsel’s motion. See E.L.C. Electric, 348 NLRB 301, 302 fn. 6 (2006). Finally, in view of the fact that the Respondent ceased operations on November 7, 2012, we shall order the Re- spondent to mail a copy of the attached notice to the Un- ion and to the last known addresses of its former em- ployees who were employed at any time since September 24, 2013, in order to inform them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Respondent, Cobalt Coal Corp. Mining, Inc., Premier and Hensley, West Virginia, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Creating the impression that it is engaged in sur- veillance of its employees’ union or other protected con- certed activities. (b) Coercively interrogating employees about their or their coworkers’ union activities, sympathies, or support. (c) Threatening employees with closure of the mine if they select the Union as their bargaining representative. (d) Telling employees that they are being sent home prior to the completion of their work shift because the employees selected the Union as their bargaining repre- sentative. (e) Refusing to recall and/or assign work to employees because the employees formed, joined, or assisted the Union, or engaged in protected concerted activities, and to discourage employees from engaging in these activi- ties. (f) Sending home employees prior to the completion of their work shift because the employees formed, joined, or assisted the Union, or engaged in protected concerted activities, and to discourage employees from engaging in these activities. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole the following employees for any loss of earnings or other benefits suffered as a result of the discrimination against them, by paying them the amounts opposite their names, plus interest accrued to the date of payment and minus tax withholdings required by Federal and State laws, as set forth in the remedy section of this decision: Johnny Simms $ 1600 Bruce Blankenship 120 Eddie Branch 130 Fred Coleman 104 William Mullins 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Danny Smith 130 TOTAL BACKPAY: $ 2184 (b) Compensate Simms, Blankenship, Branch, Cole- man, Mullins, and Smith for the adverse tax consequenc- es, if any, of receiving lump-sum backpay awards, and file a report with the Social Security Administration allo- cating the backpay awards to the appropriate calendar quarters for these employees. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to recall and/or assign work to Simms and the unlawful sending home of Blankenship, Branch, Coleman, Mul- lins, and Smith prior to the completion of their work shift, and within 3 days thereafter, notify them in writing that this has been done and to notify them in writing that this has been done and that the refusal to recall and/or assign work and sending home prior to the completion of their work shift will not be used against them in any way. (d) Within 14 days after service by the Region, dupli- cate and mail, at its own expense and after being signed by the Respondent’s authorized representative, copies of the attached notice marked “Appendix”4 to the Union and to all employees who were employed by the Re- spondent at any time since September 24, 2012. In addi- tion to physical mailing of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. May 24, 2013 Mark Gaston Pearce, Chairman Richard F. Griffin, Jr. Member Sharon Block, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Mailed by Order of the Na- tional Labor Relations Board” shall read “Mailed Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” APPENDIX NOTICE TO EMPLOYEES MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to mail and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT create the impression among our em- ployees that their union activities are under surveillance. WE WILL NOT interrogate our employees about their or their coworkers’ union activities, sympathies, or support. WE WILL NOT threaten our employees with closure of the mine if they select the Union as their bargaining rep- resentative. WE WILL NOT tell our employees that they are being sent home prior to the completion of their work shift be- cause the employees selected the Union as their bargain- ing representative. WE WILL NOT refuse to recall and/or assign work to our employees because you formed, joined, or assisted the Union, or engaged in protected concerted activities. WE WILL NOT send our employees home prior to the completion of their work shift because you formed, joined, or assisted the Union, or engaged in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL make whole employees Johnny Simms, Bruce Blankenship, Eddie Branch, Fred Coleman, Wil- liam Mullins, and Danny Smith for any loss of earnings and other benefits suffered as a result of our discrimina- tion against them, by paying them the amount set forth in the Board’s Order, plus interest accrued to the date of payment and minus tax withholdings required by Federal and State laws. WE WILL compensate employees Johnny Simms, Bruce Blankenship, Eddie Branch, Fred Coleman, William Mullins, and Danny Smith for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, COBALT COAL CORP. MINING, INC. 5 and WE WILL file a report with the Social Security Ad- ministration allocating the backpay awards to the appro- priate calendar quarters for these employees. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful refusal to recall and/or assign work to Johnny Simms and the unlawful sending home of Bruce Blankenship, Eddie Branch, Fred Coleman, William Mullins, and Danny Smith prior to the completion of their work shift, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the refusal to recall and/or assign work and sending home prior to the completion of their work shift will not be used against them in any way. COBALT COAL CORP. MINING, INC.